Guest editorial/Column #2 by Jon Roland,
Constitution Society, 210/224-2868, May 1, 1995
Rediscovery of the Constitution
The Eleventh Commandment was stated in positive
terms, "Love thy neighbor ...", but it might be
better understood by contemporaries if it were
restated using the previous format: "Thou shalt
not demonize or dehumanize others." The beginning
of hatred is putting a label on someone. Even a
seemingly innocent label, intended only to speed
up communication, can have the effect of lumping
very different people together, dismissing their
concerns, and relegating their grievances to the
ashcan.
One has to wonder what James Madison or Thomas
Jefferson would say if they could come back today
and hear people who are devoted to government
compliance with the Constitution being dismissed
as "extremists".
Well, it would seem that at least five members
of the Supreme Court have tentatively joined the
ranks of those radicals that federal agents like
to describe as people who "take the Constitution
literally". In the recent decision in U.S. v.Lopez
Justices Rehnquist, Kennedy, O'Connor, Scalia, and
Thomas joined to overturn a federal criminal
statute based on the interstate commerce clause
for the first time since 1936, on the grounds that
carrying a gun on or near a school did not
"affect" interstate commerce.
A little background here. After the Supreme
Court ruled, correctly, against several of
President Franklin Roosevelt's legislation
intended to deal with the Great Depression,
Roosevelt threatened to "pack" the Supreme Court,
increasing its number by statute from nine to
fifteen, and adding additional members chosen to
vote for the constitutionality of his legislation.
There are also unconfirmed reports that the
justices may have been threatened in other ways.
In any case, seeing that they could not withstand
the determined efforts of the President and
Congress to adopt unconstitutional legislation,
they surrendered and proceeded to violate their
oath to uphold the Constitution. The Supreme Court
has been doing that ever since, allowing more and
more federal power to be assumed, most of it based
on that interstate commerce clause.
When the subject of federal legislation couldn't
be described as "interstate commerce", Congress
began to expand federal jurisdiction to include
not only "interstate commerce" itself, but
anything that had ever moved as interstate
commerce, then everything that might some day move
as interstate commerce, then anything that might
be "part of an aggregate" of things, some of which
move as interstate commerce. Then they decided
that it should include all the operations of any
enterprise that engages in interstate commerce.
And, finally, that it should include anything that
"affects" interstate commerce.
But that was not enough. Although the original
meaning of "to regulate" was "to train or
discipline", and was intended to cover the kind of
thing done at loading docks and traffic
intersections, the meaning was extended to include
"prohibition", and the power to impose criminal
sanctions on violators, that is, the deprivation
of life or liberty, rather than such civil
sanctions as the deprivation of property or
privileges. This led to a host of federal criminal
legislation, much of which might be arguably
constitutional if applied only to federal
territory not the part of any state, over which
the Constitution grants "general legislative"
powers, but not over offenses committed on state
territory.
If federal courts begin to pick up on this
important Supreme Court decision, and to unravel
the last 60 years of unconstitutional federal
legislation, we could see a contraction of
government that will bring significant changes to
the lives of everyone. The thing that most
irritates constitutionalists and civil
libertarians is the assertion of jurisdiction by
federal courts over offenses committed on state
territory over which the central government does
not have jurisdiction. The only crimes committed
on state territory over which the federal courts
have jurisdiction are treason, counterfeiting,
piracy and felonies on the high seas, and offenses
against the laws of nations. In addition, the
federal government may, arguably, have the power,
under the fourteenth amendment, to prosecute for
the crime of an official at any level violating
the civil rights of a person.
However, when was the last time anyone heard of
a high-level federal official being prosecuted for
violating the civil rights of anyone? Not that
such violations don't happen, of course. It's just
that no one is held accountable. And this reveals
a basic flaw in the structure of the Executive
Branch of the federal government. Agencies are
left to police themselves.
What is needed is to restructure the Executive
Branch so that every agency and department has at
least two other agencies and departments to
watchdog it, the watchdogs competing with one
another to uncover misconduct. And the watchdogs
should have their own watchdogs.